-jp Plipll 



iliiilii™ 



E438 









^c 











'^o^ 



o_ V 



•"• 4^"^ '^ '•• 




^"^^ 






^ .1 


















'^0^ 
















»* <L^ CN •; 



.^ ... 










I>IlOr*ERTY IN TEHHITOHIES. 



SPEECH 



HON. X M. MASON, OF VIRGINIA, 

DELIVERED 

IN THE SENATE OF THE UNITED STATES, 

MAY 18, 1860. 



Tlie Senate having under consideration the resolutions submitted by Mr. Davis on the 
Ist of Mirch affirming the equality of the States, the right of the citizens of each State 
to remove to 'the Territories with their property, and denyiag the right of Congress or a 
Territorial Legislature to discriminate either in relation to persons or property in the ler- 
ritories and asserting the duty of affording protection when experience shall prove that 
the judicial and executive authority do not possess means to insure adequate protection 
to constitutional rights in a Territory— Mr. MASON said : 

Mr. President : I have not felt at liberty to refrain from expressing the opin- 
ions which control my judgment on the resolutions before the Senate, because 
they involve questions not only deeply interesting, but, as I consider, of vital 
importance to my State and to the section from which I come. 

It may be the sense of honorable Senators who do not feel the force of these 
questions— as was said a little while ago by the honorable Senator from New 
Hampshire (Mr. Hale) — to treat them as theoretic or as abstract, as topics which, 
in this form, ought not to come before the Senate for consideration ; but we all 
know very well that it has become the settled practice of the country, in both 
Houses— perhaps more peculiarly in the Senate— to deliberate on and to afiBrm 
or disaffirm grave questions affecting constitutional right wheuthey arise ; and 
more especially would it seem to repel any idea that the questions involved in 
these resolutions are of a light or trivial import, when we have seen the very 
disturbing influence that has been exercised within the last week or two upon 
deliberations outside of this Chamber, where representatives were assembled in 
convention from every State in the Union to deliberate upon matters of common 
interest to them, operating as an element so disturbing as to separate entire States 
from that convention. 

Sir, there is a fable that impressed me in my youth, and which may not be 
inapplicable to the views which the honorable Senators take of these questions, 
of the wanton boys who collected on the margin of the pond and were pelting 
the frogs in the pond to death with stones, the remonstrance made by one of 
those defenceless creatures was that, although it was sport to the boys, it was 
death to the frogs. Sir, this may be sport, or may be treated as matter of light 
or trivial import, as a mere question of party division ; but we look upon it as 
a question involving cot only constitutional right, but a right indispensable to 
be settled in order to insure the stability of this Union. 

The resolutions involve the relations that subsist under the Constitution be- 

Printed by Lemuel Towers, at $1 per hundred copies. 






A/- 



ivrdQu. the Territories of the United States aud the States themselves ; questions 
not merely of abstract interest, but questions necessary to be settled in order to 
^ define and ascertain those rights, and bring them into practical fruition. The 
honorable Senator from Illinois, (Mr. Douglas,) to whom I listened with great 
interest and respect during the last two days of the session, has presented his 
views, not only elaborately, but with great strength and power, upon this very 
question of the relations between the Territories aud the States — views from 
which I differ totally — views which, if correct and carried into effect, must rend 
asunder existing party alliances and bring the southern States to separate organi- 
zation. They involve, of necessity, a discussion upon, a minute inquiry into, 
and a thorough understanding of, the relation which the occupants of a Terri- 
tory bear to the States of the Union ; because a Territory, I believe all admit, 
is a common property, belonging just as much to one State as to any other ; in 
which all have equal rights, and in which the Constitution requires that the 
rights of all shall be equally respected. Nor is it abstract; because the very 
question has arisen before the country, and is now depending in the legislation 
upon your table. 

It involves the constitutional control of the States of the Union acting through 
the Federal Government upon the Territories — a great principle — a control af- 
firmed on one side, and directly disaffirmed on the other. Now, what is it ? 
The territorial, or organic law, as it is called, is a law passed by the Congress of 
the United States organizing a government in a Territory. The character of the 
organization ; the powers that are conferred upon the people of the Territory, 
and those that are withheld from them ; the mode in which they are exercised, 
are alL necessarily expressed in that organic law. vSome fifteen years ago, it was 
claimed, by a majority in both Houses of Congress, that, in passing a law cre- 
ating and establishing government in the Territories, Congress had the power to 
create a disparity between the States of the Union ; that Congress had the power 
to declare that one condition of society belonging to certain States of the Union — 
that of African bondage — should not go into the Territories. Congress asserted 
that power as a constitutional right. It is known in popular acceptation as the 
Wilmot proviso — the interdict denounced by Congress in the organic law of the 
Territories against the admission of African bondage into the Territories. It was 
resisted to the best of their ability, and in the sternest manner, by the States 
interested. They were overruled. According to my recollection, in more than 
one instance, certainly in organizing the Territory of Oregon, that interdict was 
put in the law. 

The southern States were deeply moved. They felt not only that they were 
aggrieved, but that the compact which they had entered into with the other 
States had been violated to their wrong. There was hardly a Legislature, if any, 
in the southern States that did not express the sentiment of their people on this 
violation, as they considered, of the great compact between the States — the Con- 
stitution. It resulted that men took counsel together. In the year 1850, when 
it became necessary to organize new Territories, arising from the acquisitions 
obtained at the close of the Mexican war, a series of measures were projected 
in the Senate affecting this condition of society, African bondage, in various 
forms, and were blended together in one bill, including the organization of the 
new Territories, which was termed by its friends a great measure of compromise. 
I do not mean to go further into that history than to exhibit its results. The 
bill failed to pass; and those various measures were enacted separately, in various 
forms. They passed, however, by the general term of compromise measures, 
I was one of those, occupying a seat in this body, who disapproved of many of 
those measures, and voted against them. They were passed, however. In that 
legislation, a new feature was introduced in the laws organizing territorial gov- 
ernments. Congress refused to put this interdict called the Wilmot proviso mto 
those bills; and, in organizing the legislative department of the Territory, gave 

Bzchansre 



to their Terriioiial Legislature jurisdiction over all rightful subjects of legisla- 
tion consistent with tiie Constitution. 

Subsequently, in 1854, the same question came up again upon the necessity 
of organizinjjr territorial governments for Inrlian country that had been redeemed 
from the hand, of the Indians in Nebraska; and there were organized there two 
Territories — one called Kansas, and the other Nebraska. There was again an 
earnest desire amongst those who counseled together upon the dangerous ques- 
tions involved in those territorial organizations, so to adjiist them as, whilst in- 
suring the equal rights of all the St-^tes in the Territories, to withdraw their dis- 
turbing influences from the Halls of Congress. 

In the Kansas-Nebraska act there was a provision intended, and which in my 
judgment was necessary to carry out fully the intent of the framers of the law. 
It was a provision to abrogate and annul a previous interdict which had been 
made upon those Territories by what was called the Missouri line — a law that 
prohibited slavery north of a certain parallel of latitude. The scheme of the 
laws of 1854 for Kansas and Nebraska, as I understood them, was, in a fair 
spirit of adjustment amongst those who really desired to get rid of this very dis- 
turbing question, to transfer it to where it legitimately belonged — to transfer it 
to the'^Constitutiou of the United States; all parties submitting that, if it was a 
constitutional right in Congress to prohibit slavery in the Territories, they might 
concede the discretion to the Territorial Legislature; but the question whether, 
under the Constitution, this right existed or not, should be referred to the courts, 
all parties agreeing, as I understood, to abide by their decision ; and the law was 
modeled accordingly. To effect this, it was necessary, in the judgment of those 
who passed the law, to leave the question to the people of the Territory, through 
the Territorial Legislature, with a provision contained in the law (re%)deling to 
that extent former territorial laws) by which the question should go before the 
Supreme Court of the United States. That was done. The language of the 
law was of a peculiar character. I voted for the law, and to that extent am re- 
sponsible for its language — no further. 

A very distinguished and able Senator, who then occupied a seat on this floor, 
and who is now no more, in terms somewhat of derision, spoke of it "as a law 
with a stump speech in its belly," because there were recitals in the law intended 
to indicate the purpose of its framers. I have the law here, and shall refer to it 
a moment. In the fourteenth section there was a provision which abrogates the 
Missouri compromise, so called. The term " repeal," which is the ordinary word 
to annul or revoke a preexisting statute, was not used. It was the pleasure of 
' those who framed the law, to declare that the law was annulled, and to assign 
the reason for it. The reason assigned is, that it was "inconsistent with tha 
principle of non-intervention, by Congress with slavery in the States and Terri- 
tories, as recognized by the legislation of 1850, commonly known as the com- 
promise measures." That is the reason assigned for annulling the Missouri re- 
striction, that it was inconsistent with the principle of n on intervention by Con- 
gress established in the compromise measures of 1850. 

Now there are those on this side of the Chamber who assign to this word 
"non-intervention" a potent meaning, which, if correct, shows that it was de- 
signed — in the striking language of the honorable Senator from Mississippi, (Mr. 
Davis,) who addressed us yesterday — to paralyze the arm of Congress in the 
exercise of its constitutional duties. In other words, it was designed to disable 
Congress in the discharge of duties imposed upon it by the Constitution. Now, 
what was this "non-intervention?" We cannot know to what the term refers 
unless we first examine what the intervention was that it was intended to pre- 
clude. Congress had intervened in previous laws to prohibit slavery in the Ter- 
ritories. It had intervened in 1820, by passing the Missouri restriction. It had 
intervened again in passing the Wimot proviso. It had established as the law 
of the question, so far as the will of Congress went, that slavery should not be 



carried into the Territories. That was the intervention thaf. was to be diaafBrm- 
ed by this "non-intervention;" otherwise it could not have aiij meaning. Its 
purpose and policy were to leave, as the statute expressed in another section, 
all questions of every kind — this question of African bondage among the rest — 
to the occupants of the Territory met in their legislative halls — to transfer it 
from Congress to the Territorial Legislature. The language is very broad, and 
I am prepared to give to it its fullest meaning. In the twenty-fourth section 
the language is : 

"That the legislatire power of the Territory shall extend to all rightful subjects of 
legislation consistent with the Constitution of the United States, snd the provisions of 
this act." 

And again, in the thirtieth section, it is declared that — 

"The true intent and meaning of this act being not to legislate slEfvery into ar.j State 
«r Territory, nor to ex^-Jude it therefrom, but to lea^e the people thereofperfectly free to 
form and regulate their domestic institutions in their own way, subject only to the Con- 
stitution of the United States." 

And to remove every possible doubt — a doubt that I never entertained, but 
it was entertained, and gravely entertained, by very able men — to remove every 
possible doubt whether the Cons'titution of the United States was the law of the 
Territory, as it was the law of the States, the bill enacts the Constitution as the 
law of the Territory. 

Then I am free to admit as my interpretation of this law, that it was intended 
•t'G remove this question from Congress, and to remit it to the people of the Ter- 
S'ifcories, to prohibit slavery or not, as the Constitution might admit — no further. 
I kEOw (Aat those with whom I counseled — wise and able men from the section 
of the country from which I come, cliiefly interested in the disposition of this 
<j.uesti<5n — deliberated a long time — ^not alone when the Nebraska bill was in- 
troduced, but years before, in 1849-^50 — whether, with due regard to the rights 
of the States, we could consent to make this question, which was really a politi- 
cal one, a question for the arbitrament of the courts. It is, in truth, a political 
question ; so treated on all hands by parties in this country, in their struggle? 
for political power; and we deliberated long and maturely upon the propriety 
•f referring such a question to the arbitrament of the courts; bnt we did it. 
We were not bound to do it. It is a qu'^stion of political law, not of municipal 
law — a question upon which the States, as sovereign powers, were entitled to 
stand upon their sovereign rights, and to b.* each its own arbiter. We never 
jjoubted that; but in order to preserve the p!>nce of the Union ; and, in the con- 
jfident belief that we were right in our reading of the law of the Constitution, it 
..w£s agreed, as early as 1850, and under the counsels of that very learned and 
.abie jurist and statesman, Mr. Calhoun, to make it, although a political question, 
a-eubject for judicial determination. It was done in a bill, that was called at 
^the time the Clayton bill — a bill introduced, and a committee raised upon it, in 
,18£0, on the motion of the late Senator from Delaware, also one of the most 
. able and intelligent men of his day. The bill passed the Senate, but it was lost 
.in the House of Representatives, and thus not enacted into law. 

We again agreed, in 1854, in organizing the new Territories of Kansas and 
■ Nebraska, to carry out the same principle, to concede the political right of the 
, ?pvereign States in the South to treat it as a political question, to be deterraineil 
for themselves, and, in deference to the peace of the Union, to refer the question 
. to the courts, with an agreement to abide by the decision. We agi'eed further, 
as pecessary to carry out the spirit of the law, that Congress should not inter- 
vene. ; How? Should not intervene by legislating upon the question thus re- 
,mitte<:l to the people of the Territories; and that any law passed by the Terri- 
torial Legislatures should be respected or not, as the Suprenie Court should de- 
...'Lenciine the constitutional power. If determined against the South, we agreed 



to abide by it, and the law should stand. But if determined in favor of the 
South, that we -^ uuld have the benefit of the decision and the law stricken from 
the statute-book. That is the true position of the question under the Kansas- 
Nebraska law. The interdict to be respected by Congress, if declared by the 
Supreme Court to be warranted by the Constitution. To be removed if not so 
warranted. The idea that Congress, in any form, abdicated its constitutional 
control over the Territories, was never pretended, if it could have been conceived. 

Well, sir, that is non-intervention. We and Congress, so far as I recollect 
since the passage of that law, have not attempted to intervene. No law has 
been proposed here to prohibit slavery in the Territory of Kansas. It happened 
that very soon after the passage of this law in 1854, the very question arose 
contemplated in its policy, and was carried to the Supreme Court in a case which 
has become so celebrated since as the case of Dred Scott. That it did not arise 
under a territorial law is very certain ; but it arose under the Missouri law of 
1820, which was a law of Congress prohibiting slavery in the Territories north 
of a certain line. It was a case that necessarily tested, and is admitted on all 
hands to have tested, the power of Congress to prohibit African slavery in the 
Territories. Allagreed to that. It was carried to the Supreme Court ; and the 
Supreme Court, by its decision, after elaborate argument and great deliberation, 
in a well-considered opinion, pronounced by that venerable and learned man 
who presides in the court as the Chief Justice, propounded the law of the case, 
and the power of Congress to prohibit slavery in the Territories was disaffirmed 
absolutely, unequivocally, without qualification. 

I know it has been said by honorable Senators, as by others, that the question 
did not come judicially before the court, tijatthe case turned upon questions of 
pleading and of jurisdiction, and that the decision made by the court upon this 
right in Congress was extrajudicial and obiter. I can only answer to that, the 
Supreme Court decided otherwise. In the opinion of the Chief Justice these 
very objections are canvassed and overruled — declared unfounded — the court 
deciding that this very question of constitutional right or power was immediately 
before it, and the decision of the court made immediately upon it. Such is 
unquestionably the ruling of the court. 

Now, then, where do we stand ? Honorable Senators have said here that we 
were under an engagement of honor to abide by this judgment. Agreed ; and 
we are further under the engagement of the law itself, which with law-abiding 
citizens is a paramount engagement. We voted for the law intending to abide 
by it fairly ; and the decision made, we have a right to exact the same obliga- 
tion from others, against whom it operates. 

Since that decision, however, a doctrine has grown up, or rather has assumed 
shape and character, ascribing to the people in a Territory some inherent power 
in them as a political community independent of Congress and the Government 
of the United States-*-sovereignty ; what has been termed by one of the ablest 
vindicators of this doctrine, the honorable Senator from Illinois, in a very 
elaborate thesis that he wrote upon this subject after the decision of the Su- 
preme Court, " popular sovereignty in the Territories." That is the designation 
he has given to it in his pamphlet, which I have here, reprinted from Harper's 
Magazine. Why, sir, it is a solecism in mind, if not in language. What is 
sovereignty? Everybody understand that who has advanced beyond the horn- 
book of the publicists. There is no difficulty in defining it and comprehending 
it. Sovereignty is supreme power, let it be lodged where it may — sujJreina lex. 
The will of the sovereign is the law of the subject. 

Where does it exist in our country ? In the Government of the United 
States? No. No man who respects his judgment, either as a jurist or a states- 
man, will affirm it. It is here in the country beyond all question. It does not 
reside in the Federal Government. It does not reside in the people of the Uni- 
ted States as such ; but yet it is here potent, and its voice felt every day iu the 



6 

government of the country. Sovereignty in this country resiflcs in the people 
of the several States as separate States, as separate and distinct pi^litical com- 
munities — nowhere else. The sovereignty of my honored State of Virginia is 
pure and simple, as is that of the contiguous State of Kentucky ; but the sov- 
ereignty of Virginia is one thing, and the sovereignty of Kentucky is another 
thing, entirely distinct. The Government formed by the Constitution of the 
United States is the act of these sovereigns, acting separately each for itself. 
These resolutions affirm that proposition. The Constitution of the United 
States, which brought into being the Government of the United States, is the 
act of these sovereigns, each for itself, entering into a common Government by 
compact; and thus it has been said, and well said, by honorable Senators who 
have preceded me — the honorable Senator from Texas (Mr. Wigfall) and the 
honorable Senator from Mississippi (Mr. Davis) — that the Government of the 
United States is nothing but the agency of' the "States." It is through the 
Government of the United States that these sovereigns speak their will. The 
■will of the Constitution is their will. The law of the Constitution has no bind- 
ing obligation on earth upon any citizen of this country ; but as it is the will of 
the separate sovereigns to whom those citizens are subject. The Government, 
then, is but an agency; it has no sovereign power whatever. When it passes a 
law, that law is supreme. There is no doubt about that. Every act of the Fed- 
eral Government is a supreme act ; and why ? Because the sovereigns who 
created the agency made it so, and for no other reason. The Constitution on 
its face declares that laws made pursuant to the Constitution shall be the supreme 
law of the land. The will promulgated through the law is not that of the Gov- 
ernment; it is the will of those who made the Government — the sovereign 
States. 

Now, sir, that being, as I understand, the true relation in which the States 
stand to each other under this common Government, what is the relation that 
a Territory, so called, bears to the States and to the Constitution ? The first 
Territory that was acquired after the Constitution was adopted was the Territory 
of Louisiana. It was purchased by this agency of the States — the Federal Gov- 
ernment — in a bargain called a treaty between France and the Government of 
the United States. France was a sovereign power. The will of the King of 
France was the supreme law of the subject of France, whether that will was 
made known to the subject on the continent of Europe, or in the territory of 
France in the wilds of America; and thus by will of France, through this trea- 
ty, the property in the territory which had been the property of France passed 
— where? To the Government of the United States as a property in the Gov- 
ernment? No; it passed to the States, and became the property of the States, 
as sovereigns treating with a sovereign, and acquiring it through a common 
agency. 

This is not a mere dispute about terms. The immense ||erritory thus acquir- 
ed became the property of the States, subject to the constitutional engagements 
subsisting between the States and its inhabitants — passed under the dominion 
of the States, to be exercised through the Federal Constitution. If this be not 
60, then it would become the property of the agent, independent of the princi- 
pal, to be ruled and used at its pleasure. It became the property of the States. 
The title vested certainly in the agent of the States, but as the trustee for the 
true owners ; a trust to be administered under the Constitution for the benefit of 
the proprietors — those sovereign States, who were together represented under a 
common agency, the Federal Government. 

Well, sir, the property was transferred. What else was transferred ? Do- 
minion. That is known to every writer on public law. When a sovereign ac- 
quires a territory, he acquires dominion as well as property; not the right to 
the soil only, but the dominion over it — the imperiutn. Tliat is granted. No- 
body doubts that. The dominion is transferred ; and as a sovereign only can 



exercise dominion, it results that the Federal Government takes tte title only as 
the af^ent of the St ntcs, and the dominion passes directly to them. Where else 
can it'go than to tne States? The dominion, which is the criterion of sover- 
eio-nty, when France departed with it over Louisiana, could pass only to the 
States; because with them the sovereignty resided. The dominion thus vested 
in the States can be exercised only, it is true, through the Government, as their 
constitutional agency ; but still it is the dominion of the States not of the Gov- 
ernment. 

When Mr. JeffersoD acquired Louisiana, everybody who is conversant with 
the history of the country knows that he entertained very serious doubts of the 
constitutional power of the Government to acquire it. It was a new case, hut 
a very urgent one. It was urgent because of the imperious necessity to the 
welfare and growth of the western country that the United States should exer- 
cise dominioa over the mouth of the Mississippi, the great outlet of the West. 
Mr. Jefferson took the responsibility with very grave doubts, and made the trea- 
ty. There was room for grave doubt. It was a novel question, and a very 
trying one to the character of our Government. The Chief Justice, in his opin- 
ion in the Dred Scott case, I think very ably and very satisfactorily, reasoning 
upon the intendments of the Constitution, as well as its enactments, reconciles 
the power in this Government to acquire territory by reference to the power to 
admit new States, and rests it entirely upon the latter. 

The opinion of the court rests the right to acquire territory, upon the power 
given to Congress by the Constitution to admit new States. It could not admit 
new States wiithout acquiring new territory. The Northwest Territory, which had 
been then acquired by the Government, had been ceded by the State of Virginia 
before the Constitution was formed, and was transferred when the Government 
was changed. There was an expectation of other concessions of territory from 
other States. The power to form new States was not limited to territory then 
the property of the States, but was broad and general. In my judgment, I fully 
concur with the Chief Justice, that the power to acquire territory is necessarily 
derived from the power to admit new States. When the territory is acquired, 
the dominion follows from necessity. 

It had for a long time been supposed, and the opinion is still entertained by 
many intelligent minds, that the dominion which the Government has over a 
Territory thus acquired is derived from the clause in the Constitution which 
gives to Congress the power "to dispose of, and make all needful rules and reg- 
ulations respecting, the territory or other property belonging to the United 
States." That source of power is distinctly disclaimed in the opinion of the 
court, and well disclaimed. The reasoning of the court, in my judgment, is ir- 
refragable. The court show that that clause was intended to apply only to Ter- 
ritories then pertaining to the States, and had no prospective or ulterior appli- 
cation. Finding thus a constitutional power to acquire territory in the right to 
admit new States, the court assumed, as it was bound to assume, that when the 
territory was acquired the dominion followed. A case of the insurance com- 
pany vs. Canter had been decided in the Supreme Court, which had been relied 
upon more than once as confining this power to govern the Territories to the 
clause quoted from the Constitution. The Chief Justice reviews it with great 
ability, and shows that such was not the proper construction to be placed on 
the judgment of the court in the case of the insurance company vs. Canter. 
The CWef Justice, in the Dred Scott decision, in reviewing that case, quotes 
the language in the case of Canter thus: 

"In the mean time Florida continues to be a Territory of the United States, governed 
by that clause of the Constitution which empowers Congress to make all needful rules 
and regulations respecting the Territory or other property o*f the United States. Perhaps 
the power of governing a Territory belonging to the United States, which has not, by 
becoming a State, acquired the means of self-government, may result, necessarily, frona 



8 

tlie facts that it is not within the jurisdiction of any particular Sta.e, and ;a within the 
power and jurisdiction of the United States. The right to govern may be Uie inevitable 
consequence of the right to acquire territory. Whichever may be tha source from which 
the power is derived, the possession of il is unquestionable." 

That was the decision of the court in the Canter case. It was referred either 
to the clause of the Constitution quoted, to the fact that if tbe United States did not 
govern it no other government could, because it was not within the limits of any- 
other, or that it was the inevitable consequence of the acquisition ; but the 
court concludes a^? the point actually decided, that from whatever source the 
power was derived, its possession was unquestionable. The language is : 

"Whichever may be the source from which the power is derived, tlie possession of it 
is unquestionable." 

The possession of what ? The possession of the power to govern the Terri- 
tories when th'^j are acquired by the United States. To govern them — howS 
As the sovereign power governs the subject. The will of the sovereign power is 
the law of the Territory just as much as the law of the King of France is at 
this day the law of the subjects of France, or the law of the Parliament of 
England is the law of the subjects of England. The will of the sovereign States 
uuder the Constitution is the law of the Territories, of necessity. The court 
goes on to say, in the Dred Scott case : 

''It is thus clear, from the whole opinion on this point, that the court did not mean to 
decide whether the power was derived from the clause in the Constitution, or was the 
necessary consequence of the right to acquire. They do decide that the power in Con- 
gress is unquestionable, and in this we entirely concur; and nothing will be found in 
this opinion to the contrary. The power stands firmly on the latter alternative put by 
the court — that is, as ' the inevitable consequence of the right to acquire territory.' " — 19 How' 
ard's Reports, pp. 442, 443. 

There the power is aflBrmed by the highest judicial tribunal in the land, and 
upon reasoning that cannot be assailed, to exist in the Government of the United 
States to govern the Territories — power derived only from the States as sover- 
eigns. What is the doctrine now as to this " popular sovereignty in the Terri- 
tories?" In some recent publications, put out by very able men in the southern 
States, this claim of popular sovereignty in the Territories is tersely and strongly 
called " a constitutional impossibility." Any sovereignty in the Territories is a 
constitutional impossibility, because there cannot be two wills, two sovereigns 
exercising jurisdiction over the same subject. It is exclusive necessarily. This 
dogma, then, of "popular sovereignty in the Territories," is nothing more than 
a pretense, that notwithstanding by the law of 1854 this political question was 
referred to the arbitrament of the court, and notwithstanding the court has dis- 
affirmed that power, both in the Congress and in the Territories, yet that it 
still exists in the Territories under some guise of popular sovereignty, of force 
to annul or evade both the authority of Congress and the courts. 

Why, Mr. President, popular sovereignty can have but one meaning. It is 
the doctrine of American law, that legitimate sovereignty, rightful sovereignty, 
can reside only in the people. In Europe, it has been traced to other sources. 
In their distresses, to reinvigorate a decaying royalty, they used to trace it to a 
Divine origin, that it was the immediate gift of the xilmighty to the sovereign 
and his successors. They endeavored, in wresting it from the true source — the 
people — to ascribe its presence in the ruler to the mandate of Deity, the Divine 
right of kings. But, whatever it is, it can exist but in one place, and be with 
but one depository. I think the good sense of the country will unite with the 
concurrent judgment of the jurists of the country, that, by popular sovereignty, 
they mean a sovereignty that resides in the people, constituting a political 
COMMUNITY. That is popular sovereignty. That is the sovereignty of the people. 
It is misapplied, it is a misnomer, it is a "constitutional impossibility," from the 



9 

form of our Governmect, and the constituent parties to it, that sovereignty rul- 
ing the Territories can reside anywhere but in the people of the States, to be 
exercised through the constitutional forms of the Government; and if that be 
true, it cannot be admitted in the people of the Territories, or any portion of 
them. 

I understand, though, the honorable Senator, who is the Corypheus of this 
doctrine of " popular sovereignty in the Territories," to say, that when people 
are in a Territory without an organic law, they have no sovereign power; but 
that there is some attribute of sovereign power acquired to them when they 
become, by a law of Congress, organized into a territorial government ; how, or 
why, we were not told. What stimulant or eflect, what plastic power is exer- 
cised by the organic act in infusing sovereignty into a Territory when it was not 
there before, we were not informed. What is the organic law ? A law of Con- 
gress organizing a government in a Territory. On almost every page of the 
law there is a distinct repudiation of any sovereignty in the people of a Terri- 
tory. Take the law of 1854. The legislative authority is committed to the per- 
sons who are to be elected iu the mode prescribed by the law. The will of the 
people, through their legislative power, is to be respected as law because Con- 
gress ordained, not because the people of the Territory ordained it. Sovereignty 
in the people is self-government by the people, if it means anything; but here 
the only political power they exercise under the organic act, is the legislative 
power, and they derive that by an act of the Congress of the United States. 
The act itself is the negation of any idea of sovereignty, in the people of the 
Territories ! 

But, further, do the people of a Territory choose their own Governor, or do 
they elect their judges, or do they even determine how the Governor shall be 
chosen, or how the judges shall be appointed ? No. The Governor is appointed, 
at the command of Congress, by the President of the United States, and the 
judges are appointed, at the command of Congress, by the President of the 
United States, without any reference whatever to the will of the people of the 
Territory. Therefore, to tell me that, in the organic law, there is given to the 
people of the Territories anything that approaches to sovereignty, is an abuse of 
terms. The organic law is itself a repudiation of any sovereignty in the people 
of a Territory. The Governor of the Territory is not only appointed by the Pre- 
sident, without any regard to the will or to the choice of the people of the Ter- 
ritory, but the organic law gives him a veto on the legislative mind of the Ter- 
ritory. He has the right, under the power given to him by Congress, to veto 
the legislative will of the people of the Territory. And more than that, he is 
the ofKcer of the Federal Government, not the ofBcer of the people of the Ter- 
ritory. He is responsible to the Federal Government, and not to the people of 
the Territory ; and if, in the judgment of the President, he fails to exercise that 
veto, in order to keep the people of the Territory in their legislation within the 
constitutional pale, the President vetoes the Governor, and puts him out of 
office. Tell me after this, that by that organization, there is imparted, in any 
form, to any extent, anything like sovereignty to the people of a Territory. 

Now, Mr. President, to come back to this imputation — perhaps that is too 
strong a term — to this suggestion of something like want of faith in those who 
reason as I do, that power not only resides in Congress to control the Territories 
in everything pertaining to law, but that, when "an occasion arises, it is their 
duty to exercise it. The honorable Senator from Illinois says if you do, you 
not only violate the law which prohibits intervention by Congress, but you vio- 
late honorable engagements which have been entered into outside of Congress, 
in the organization of the parties of the day, as evinced by the platform adopted 
at Cincinnati, when this term "non-intervention" was used pretty much in the 
language of the statute of 1854. Sir, I have said already that I abide by that 
statute to the fullest extent; that we, who agreed to this form of legislation for 



10 

the Territories to preserve the peace of the country, are ''oind by it, not only 
by the law, but by honorable engagements ; but when the caaus fcederis has 
arisen, when the question there, withheld from the people of a Territory with- 
held from Congress, and referred to the courts, is decided against the people of 
the Territory, and that people refuse to conform, I indignantly deny that the 
hands of Congress are tied up by this doctrine of non-intervention. That is the 
casus fcederis — the case provided for. If it has occurred ; if the question re- 
served from the people and from Congress and submitted to the court, has been 
decided by the court, and the people of the Territory refuse to conform to it I 
insist that it is the duty of Congress to exercise its whole power to make them 
conform. 

It is strange, indeed, that any sensible men, dealing with a vital and a living 
question of this sort, aflecting the integrity, the prosperity, and the very honor 
of the section of the country from which they come, the States which tliey rep- 
resent, could have made any compact that was to paraKze the arm of Govern- 
ment when invoked to enforce the Constitution and the laws. The case has 
arisen; the judgment of the arbiter has been given. It is declared, in solemn 
judgment, by the Supreme Court, that Congress has no power to prohibit sla- 
very in the Territories; and the court goes further, in declaring as a corollary 
from that position, that as Congress possessed no such power, the Territories 
eould not have it, for whatever power they had, was derived from Congress. 
The court says : 

"And if the Constitution recognizes the right of property of the master in a slave, 
and makes no distinction between that description of property and other property owned 
by a citizen, no tribunal, acting under the authority of the United States, whether it be 
legislative, executive, or judicial, has a right to draw such a distinction, or deny to it the 
benefit of the provisions and guarantees which have been provided for the protection of 
private property against the encroachments of the Government." — 19 Howard's Reports, 
p. 451. 

If it be true, and I hardly suppose it is a debatable question, that the people 
of a Territory, under their organic law — the people of Kansas for instance — 
have no political power but what they derive from the organic law, and thus 
from Congress, Congress could not impart to them greater powers than Con- 
gress possessed ; and although Congress has committed to them power over all 
rightful subjects of legislation, when it is decided that a prohibition of slavery 
is not competent to Congress, it is equally decided that it is not competent to 
the Territory; otherwise the creature would be of greater power than the crea- 
tor. The court has said, in terms, that no authority derived from the Congress 
of the United States can draw these distinctions between slave property and any 
other property, or deprive the owner of the benefit of the guarantees of the 
Constitution. 

Now then, sir, my view is this: the only question of difference amongst any 
of us was the disposition of the question of shivery in the Territories. It has 
been the only question of difference in Congress in the organization of govern- 
ment for the Territories. Everything else has been agreed upon without differ- 
ence of opinion. I agree fully that this, as a question of power, exercised 
through tlie people of a Territory, was to be submitted to the courts ; and I 
agreefully that, until trie courts decided it. Congress was bound, if it adhered 
to the law, not to intervene. If the Territory of Kansas had passed an act pro- 
hibiting slavery in that Territory, the organic law, fairly carried out, would have 
restrained Congress from repealing it until the courts had passed upon it. That 
is the meaning. It can have no other meaning. It was not intended to para- 
lyze the constitutional action of any department of the Government, when a 
case arose under the law for its exertion. 

The fourth and fifth resolutions only afhnn, in strict obedience to the law of 
1854, that if the people of a Territory, after the decision of the power against 



11 

tliera, undertake to exercise the power, then it is the duty of Congress, hy 
whatever appropriate legislation, to apply the remedy, and to annul the offend- 

iuor law. 

The honorable Senator from Illinois, however, as I understand his argument, 
Bays that we are committed by this doctrine of non-intervention to let the peo- 
ple of a Territory alone in their legislation, happen what may ; because, said 
he if the people of the Territory exercise a power not granted under the Con- 
stitution derivatively through Congress, you have agreed by that law to refer it 
to the court, and when the court has decided it, your remedy is exhausted. 
That is his construction, I have spoken of this as a political (question, one that 
the States had a right to determine for themselves, which, in deference to the 
peace of the Union, they agreed to refer to the arbitrament of the courts 
Ihrough this statute ; and can it be that men capable of representing the States, 
capable of legislating to bind the States, would have countenanced such a law, 
if they had dreamed that such construction would be placed upon it, binding 
their hands and their successors forever to give etiect to it ? 

It is said now — I have no further information than what is derived from the 
newspapers of the day — that the Territory of Kansas has passed laws prohibit- 
ino- slavery. How the fact may be, I do not know. And it is said,_ "under 
thts law, if it be so, our hands are tied by this non-intervention doctrine from 
any remedy, because we agreed to refer it to the court." We answer, the court 
has decided'it— not decided it in a case arising in Kansas, or on a law made by 
a Territory; but it has decided the question which was submitted by the statute 
in a case arising under a law of Congress, which amounts to the same thing. 
The principle is decided, and the laws of the Territories must conform. It is 
replied, " Stand by your bond ; if the case has been decided, then the power is 
disaffirmed." We answer, " But the power is exercised, although it is dis- 
affirmed ;" and the rejoinder made is still, " Stand by your bond ; although the 
power has been exercised before or since it was disaffirmed, we refer you again 
to the courts." What is to be referred to the courts ? A territorial law. The 
court decided, as I presumed it would, against the power of the Territory ; but 
the law remains on the statute-book. If the people possess any of the sover- 
eignty that has been ascribed to them, they may thus put the law of Congress 
at'^detiance, and say, "We have an inherent right, a right by virtue of our sov- 
ereignty, to retain that law on the statute-book, your power to the contrary 
notwithstanding." I do not know to what extent the honorable Senator from 
Illinois carries this doctrine of " popular sovereignty in the Territories ;" but he 
has given this title to a thesis issued to the country a few months since under 
the sanction of his name. 

But, Mr. President, the Senate has already assumed the right to annul terri- 
torial laws, and against this doctrine of non-intervention, and this, too, with 
the aid of the vote of the Senator from Illinois, (Mr. Douglas.) It was ad- 
verted to by the honorable Senator from Mississippi, in his very able remarks 
yesterday. We had it here when there was pending before the Senate a bill 
introduced by the honorable Senator from Georgia, (Mr. Toombs,) and referred 
to the Committee on Territories, and reported back from that committee, to 
authorize the people of the Territory of Kansas to form a State government. 
When that bill was depending, Mr. Clayton, a Senator from Delaware, moved 
to amend it by inserting a very long provision, which began thus : 

"No law shall be in force in the said Territory tending to the violation of the great 
principle asserted in the Kansas- Nebraska act," &c., 

reciting a number of laws of the Territory. Mr. Geyer moved to amend tlie 
amendment by a substitute, carrying out the principle, but limiting the number 
of laws to be abrogated by the act of Congress. Mr. Geyer's amendment was 
in these words : 



12 

"No law shall be made or have force or effect in said TcrriLory which shall require a 
test oath, or oath to support any act of Congress or other lep:isla."tive act as a qualifica- 
tion for any civil office or public trust, or for any employment or profession, or to serve 
as a juror or voter at an election; or which shall impose any tax upon, or condition to, 
the exercise of the riglit of suffrage by any qualified voter, or which shall restrain or 
prohibit the free discussion of any law or subject of legislation in tiie said Territory or 
the free expression of opinion thereon by the people of said Territory." 

There is a whole police code which had been enacted by the people of the 
Territory, under the power conceded to them by the organic law to exercise 
power over all rightful subjects of legislation, not contrary to the organic act 
or the Constitution, and Mr. Geyer proposed to abrogate all those laws at one 
stroke of the pen. I remember the occasion very well. I recollect how it im- 
pressed me. These were police laws. They may have been wise or unwise; 
but they were mere police laws. The test oath was a police law. The law 
prohibiting discussion upon the subject of slavery was a police law. It is a 
law which is now the law of many of the States. These were laws that had been 
passed by the Territorial Legislature of Kansas under the organic act. What dis- 
position was made of it ? Mr. Geyer's amendment prevailed, and upon a vote 
taken by yeas and nays that amendment, thus intervening by act of Congress to 
annul the territorial legislation upon these police laws, was carried by a vote of 
forty against three. As the Journal shows, the Senators voting in the negative 
were Messrs. Brown of Mississippi, Fitzpatrick of Alabama, and Mason of 
Virginia. 

Mr. President, this was intervention in 1856, if I am capable of understanding 
what meaning is to be ascribed to the word. There was intervention, by a vote 
of forty to three, in the Senate, within two years after the law passed ; taking 
away the legislative will which had been given by the organic act to the people 
of the Territory, and substituting the will of Congress in its place. Nothing, 
then, was referred to the judiciary. I voted against it, because I thought it 
was in violation of the organic act. We had by this act confided all these 
questions to the judgment of the people of the Territory without restriction, 
except as to questions of constitutional right. The people of the Territory, ex- 
ercising the power, passed those laws. The Senate asserted its right to annul 
them; because it was thought, perhaps, they were harsh, tyrannical, unjust, op- 
pressive — I care not what. Certain it is, the Senate had no scruples, from any 
doctrine of non-intervention, in striking them from the territorial code. What 
authorized that act of intervention? There was no question of constitutional 
right raised, that I heard of; or, if there was, then, under the organic act, they 
could be tested only in the courts; but this seems to have been neither sugges- 
ted or considered. The amendment was adopted; and the bill passed with the 
amendment in it ; but it was lost in the other House. There was intervention. 
There was not only a practical construction of the law, but a wrong construc- 
tion, in my judgment, for I voted against it; but it was a practical and almost 
cotemporaueous construction of the law, carrying with it the vote of the Senate 
with but three dissentients. I cannot well understand, then, how our hands are 
tied by this word "non-intervention," in a case that has been referred to the ju- 
diciary, when the Senate was at liberty, on the occasion cited, to annul a whole 
series of laws, not one of which had been referred to the courts. 

But, Mr. President, the honorable Senator from Illinois, yesterday, in very 
impressive terms, asked : will you, by the intervention of Congress, after the 
people of a Territory have decided that they will not have slavery — will you, 
by law, force slavery upon that reluctant jieople? That is the light in which 
lie views it, and in which he presents it. The people of the Territory of Kan- 
sas, as I understand, have passed a law prohibiting in some mode the introduc- 
tion of slavery into that Territory, or expelling it; and to that extent have 
shown, what may be true, that tlie people who are there do not desire to have 
the condition of slavery amongst them ; and the honorable Senator asks, will 



13 

you, by a law, force that institution upon a reluctant people? I say, no; but 
I would do this : I woukl, by law, make the people of the Territory conform 
to the Constitution, and respect the rights of others. It is no answer to me to 
say that you are ibrcing slavery on a reluctant people. The people of a Ter- 
ritory have no legislative will on that subject ; the Constitution and the laws 
have denied it to them ; the court has so declared ; and if they attempt to ex- 
ercise it, they do it in open, flagrant disregard of the rights of the copartners in 
the Territories. I would intervene in whatever manner might be most eftectual 
and judicious, not to force slavery on a reluctant people, but to compel a rebel- 
lious and factious people to regard the rights of others, and the Constitution of 
their country. 

That honorable Senator, however, claims that there is asserted by our con- 
struction of the Constitution a power to " establish" slavery in the Territories; 
and he goes on to reason, if that be true, and there is power under the Constitu- 
tion to "establish" slavery in the Territories, as the Constitution is uniform in 
its action throughout all the land, both in the States and in the Territories, there 
is a like power to establish slavery in the States. If his first proposition be 
granted, the conclusion would seem necessarily to follow. If we had ever as- 
serted or claimed any power in the Constitution of the United States to establish 
slavery anywhere, it would follow that we had the right to establish it every- 
where. I agree with him in that. But, sir, what does he mean by " establish- 
ing" slavery ? Let us come to the meaning of the term, and understand it. I 
have heard it used more than once as a term of potent meaning, and from which 
most potent conclusions were deduced. If by the term "establishing" slavery, 
is to be imported anything like founding it, instituting it, creating it, or even 
fixing it permanently, I utterly disclaim it, not only as not in the Constitution, 
but as not known to law anywhere. If "establishing" slavery be to institute 
it, ordain it, found it, I utterly disclaim it as not in the Constitution, and no- 
where to be found in law. It is a misuse of the term, and if applied it can only 
be to lead to unfounded and mischievous conclusions. I know of no law now 
existing anywhere that establishes the condition of slavery, if it is meant by es- 
tablishing to found it, or institute it, to begin it, or to create it. 

Sir, I have had occasion, more than once, in this Chamber, to challenge opin- 
ions and to challenge judgment on that point. I know that honorable Senators 
on the other side of the Chamber assume that the condition of slavery is the 
creature of positive law, and that where there is no law creating, founding, or 
"establishing" it, it cannot exist. I have had occasion, as I have said, more 
than once, to challenge opinion and authority in the Senate on this dogma — 
for such it simply is. I challenge it now. The Constitution does not establish 
slavery — nobody ever pretended it — in the Territories, or in the States, or in the 
District of Columbia, or in the arsenals, or in the forts, or anywhere else. The 
Constitution does nothing more than what is ascribed to it in the judgment of 
the Supreme Court in the Dred Scott case: it recognizes it as an existing con- 
dition, nothing more. 

Sir, the language of the court is this, summing up the reasons for the judg- 
ment of the court in disaffirming the act of Congress prohibiting slavery in the 
Territory of Louisiana north of the parallel of 36° 30' : 

"And if the Constitution recognizes the right of property of the master in a slave, and 
makes no distinction between that description of property and other property owned by 
a citizen, no tribunal, acting under the authority of the United States, whether it be leg- 
islative, executive, or judicial, has a right to draw such a distinction, or deny to it the 
benefit of the provisions and guarantees which have been provided for the protection of 
private property against the encroachments of the Government. 

"Now, as we have already said in an earlier part of this opinion, upon a different point, 
the right of property in a slave is distinctly and expressly affirmed in the Constitution. 
The right to traffic in it, like an ordinary article of merchandise and property, was guar- 
antied to the citizens of the United States, in every State that might desire it, for twenty 



14 

years. And the Government in express terms is pledged to protect it in all future time 
if the slave escapes from his owner. This is done in plain words — too plain to be misun- 
derstood. And no word can be found in the Constitution which gives Congress a greater 
power over slave property, or which entitles property of that kind to less protection 
than propert^^ of any other description. The onlj^ power ccnfi^ "'^d is the power, coupled 
with the duty, of guarding and protecting the owner in his rights. 

" Upon these considerations, it is the opinion of the court that the act of Congress 
which prohibited a citizen from holding and owning property of this kind in the Terri- 
tory of the United States, north of tlie line therein mentioned, is not warranted by the 
Constitution, and is therefore void ; and that neither Dred Scott himself nor any of his 
family were made free by being carried into tliis Territory, even if they had been carried 
there by the owner, with the intention of becoming a permanent resident." — 19 Iloivard's 
Reports, pp. 451, 452. 

The whole principle rests where the court distinctly placed it — in the recog- 
nition of the right of property. How the right of property was deiived, what 
created it, when it began, the Constitution does not undertake to determine, nor 
does the court. The court says that the Constitution recognizes it as property — • 
not establish it, not create it; but the Constitution recognizes property in an 
African held in slavery, just as it recognizes property in a horse, or an ox, or 
anything else. How it was created, when it began, what is its sanction, the 
Constitution has nothing to do with, and is silent. Therefore, when vou talk 
about the ConstitutTon establishing slavery, you speak a language equally un- 
known to the Constitution and to law. Take it as your thesis, and your con- 
clusions must not only be unsound, but perverse and mischiev*ous. 

I have said, Mr. President, that I know of no law — I defy gentlemen to point 
me to a law either iu this country or in any other country — creating this condi- 
tion of slavery. I have searched the statute-book diligently and carefully in 
every southern State, where property in slaves has been recognized for more 
than two hundred years; in my own State, from the beginning, where the first 
slave was landed more than two hundred years ago. You may search the statute- 
books in vain; yuu will find abundant laws recognizing it, as the Constitution 
does, as property, regulating it, establishing its relations iu society ; but you 
will find no law, nor the beginning of any law, nor the pretence of any law, 
creating it. I have had occasion heretofore to advert to the fact — Senators will 
indulge me in repeating it, because it is germane to the argument — that when 
the first African slave was landed ia Virginia, in 1G20, brought from the West 
Indies, there was no law in the colony of Virginia but the common law of Eng- 
land, for we had then no Colonial Legislature ; and from that day up to the pe- 
riod when the Legislature of Virginia put a stop to the importation of African 
slaves, Africans were brought from time to time in slavery to Virginia, and recog- 
nized by the laws of Virginia as property, treated by the laws of Viginia as proper- 
ty, without any question whatever. And why? Upon the plainest principles of 
international law known to all civilized communities, and recognized tlirough- 
out the civilized world, that what is property in one country is property in every 
other country, unless there is a law iu the objecting country prohibiting it. 
When a negro was brought from the coast of Africa with the condition of pro- 
perty attached to him there, that condition was recognized by the ct)mraoD law 
iu Virginia, and he was as much the property of the owner as if it was a horse 
that had been brought from England ; and for the same reason, because it was 
properly in the country from whiuh it came. 

I say, tlien, sir, that this condition of slavery attached in Africa; it is the 
only race, so far as my knowledge extends, to which that condition now belongs. 
The negro is as much property in Africa as the bullock or the ox — infinitely 
more than the untamed animals who wander in savage nature through the forests. 
He is property there ; and if there was mo law at this day in any State of this 
Union prohibiting the slave trade, or prohibiting the condition of slavery in so- 
ciety, he would be recognized as property in any Slate. It requires a law, therefore, 
to abolish it, to destroy it. There never was a law to create it. In my researches, I 



15 

Lave never found any 1m w establislnnsf slavery anywhere, but in the dispensation 
of the theocracy, through Moses, the first lawgiver. He did ''establish'' slavery 
for the Jews. He created it, ordained it, and regulated it by law ; and he, I take it. 
was the first lawgiv-T known to man. Slavery certainly existed both in Africa and 
Asia before the Moc^^i-; law; for Joseph was sold into slavery by his brethren. 
"What I mean to say is only that I have found no statute or other written-law 
ordaining or "establishing" slavery, except the law of Moses in the days of the 
theocracy, and T have brought the book, lest gentlemen Ishould not be conver- 
sant with'it. I say that Moses, by statute, ordained slavery, and regulated it, 
in the tribes of Israel under his control. 

I refer first, for these Mosaic laws, to Exodus, the second book of Moses, 
twenty-first chapter, second and following verses: 

"If tliou buy an Hebrew servant, six years he shell serve : and in the seventh he shall 
go out free for nothing." 

It limits the period of service, 

"If he came in by himself, he shall go out by himself: if he were married, then his 
wife shall go o\it with liim." 

Beautifully and clearly expressed, 

"If his master have given him a wife, and she have borne him sons or daughters; the 
wife and her children shall be her master's, and he shall go out by himself. 

"And if the servant shall plainly say, I love my master, my wife, and my children; I 

will not go out free : , . , i_ ,. n i i, • v,- 4. ^i j 

" Then his master shall bring him unto the judges ; he shall also bring him to the door, 
or unto the door post; and his master shall bore his ear through with au awl: and he 
shall serve him forever." 

There is a statute ordaining and creating slavery ,'coming from Divine authority, 
through the first lawgiver known to man — vicarious law — because Moses pro- 
pounded the mandates of the Deity, ordaining slavery, regulating it, and pre- 
scribing the terms of the bondage, whether for a terra of years or forever. There 
is a statute ordaining slavery. 

Now, sir, let us go a little further. At a future day, and while these children 
of Israel were stillm their forty years of pilgrimage, in Leviticus, the third book 
of Moses, chapter twenty-five, beginning at the thirty-ninth verse, still more ex- 
plicit, beautifully, clearly, and intelligibly, it is ordained, as the law of the tribes 
of Israel : *■ 

"And if thv brother that dwelleth by thee be waxen poor, and be sold unto thee, thou 
shalt not compel him to serve as a bond-servant; 

"40. But as an hired servant, and as a sojourner, he shall be with thee, and shall serve 
thee unto the year of jubilee." 

You find here a distinction drawn between a slave for life, and for a term of 
years, as a hired servant. The jubilee was every fifty years. A term of years 
was prescribed, where he was a brother of the tribes of Israel and was sold be- 
cause lie waxed poor. The reason assigned is : 

"For they are my servants, which I brought forth out of the land of Egypt ; they shall 
not be sold as bondmen." «» 

But only for a term of years. Then, again, in the following verse : 

"44. Both thy bondmen and thy bondmaids, which thou shalt have, shall be of the 
heathen that are round about you ; of them shall you buy bondmen and bondmaids." 

Having in the preceding verse established the distinction between a "bond- 
man" and a "hired servant," he goes on and makes it still more explicit: 

"45. Moreover of the children of the strangers that do sojourn among you, of them 
shall ye buy, and of their families that are with you, which they begat iu your laud : 
and they shall be vour possession. 

"46. And ye shall take them as an inheritance for your children after you, to inherit 
hem for a possession; they shall be your bondmen forever; but over your brethren, the 
Uildren of Israel, ye shall not rule one over another with rigor." 



16 

Now, Mr. President, if there be any lex scripta^ law Tvritten, known to any 
civilized country at this day, excepting these statutes of Mop.:s, in the days of 
the theocracy, creating, establishing, or instituting slavery,, ] do not know where 
it is. It is certainly not to be found in any code in i.r:;, '.u-antry. Moses or- 
dained it in the forty years' pilgrimage of the twelve inbcu of Israel whilst the 
Almighty was redeeming them from bondage in Egypt. There never was a 
period known to man when bondage, as Moses terras it— slavery, as we term 
it_did not exist upon that continent; and I affirm again that no law was re- 
quired to transplant it. The international laws and the common law did the 
work. When one of these bondsmen, as such, having the condition attached 
to him in Africa, was brought to this country, there was no law to establish 
his status, to found it, to institute if, but abundance of law to recognize it. 

Now, Mr. President, I hope I have shown that there is something m these 
resolutions more than a mere abstraction ; that they involve questions of sub- 
stantial right in the slaveholding States which they have never parted with or 
compromised; which they have a right to demand, and which ought to be 
granted, under the strictest construction of this doctrine of " non-intervention 
in the legislation of 1850. I trust it is shown that this idea of popular sover- 
eignty— I have not called it by the ordinary term, which seems to be one of 
derision, " squatter sovereignty"— that no sovereignty can exist in the Territories, 
or ever can exist there whilst in territorial relation ; none is infused into them 
by the organic law. I have not adverted to any of the party topics of the day. 
I have not adverted to the convention at Charleston ; to anything that trans- 
pired there, further than to show this, as a disturbing element, a very threatening 
one, in the counsels of one of the great parties of the country. 

My earnest anxiety is, that the Government which has been transmitted to us 
by our forefathers shall be preserved. I am attached to it, as you all are, doubt- 
less, not only because it came as an inheritance from an honored line of ances- 
tors, but because of its intrinsic merit, its excellence in itself. It seems almost 
to have been the work of an inspiration of the day. You might bring any 
body of men together now, I care not who, endowed with every intellectual and 
moral faculty, with the highest obligations of honor, loyalty, and patriotism upon 
them, and obliterate the Constitution from your statute-book, and they never 
could replace it — never. 

Mr. I'resident, the Union can be preserved, and it is the duty of all good 
men to do it— a duty not of patriotism alone, but of probity. It is a duty we 
owe to our race ; it is a duty we owe to the world. I declare to-day — the 
judgment of Senators will confirm it— this Union once dissolved, it is gone for- 
ever; alliance between these States is gone forever; there is no human power 
that can restore it. What is to destroy it? I say it with entire respect to all 
around me, there is nothing that can\lestroy it, if it is administered by the 
functionaries of the Government loyally, honestly, and honorably ; in other 
words, if they and their constituents' will keep the bargain which their fathers 
made. 



S4 W 







^'\ '• 






" ^ • <^ 




■^,^* 



/\ 












^^9^' 




%.^" 





\.<^" 










^^^o 




o»''*.*<t 









• ■ « aP ^^ ' • » 1 











• • ^ • ^ 












WERT 
8CX>CBIND(NC 

Craniville Pa 
March »p(H 1989 




